West Coast LEAF’s response to the New BC Family Law Act

The new BC Family Law Act (FLA) makes a number of changes to the laws that apply to spouses and their children. West Coast LEAF welcomes many of these changes, and we were pleased to have been involved in the process of reforming the FLA. However, we have ongoing concerns about how these changes will affect women’s equality.

Here are some of the FLA changes that will most affect women:

Emphasis on out-of-court dispute resolution: The new FLA encourages spouses to settle their cases without going before a judge. Parties in a case can now be referred to professionals such as counsellors, mediators, and arbitrators, or can have a parenting coordinator appointed to help them implement a parenting plan. Also, both parties must now participate in at least one mediation session if one of them requests it. While out-of-court solutions can be helpful in some cases, West Coast LEAF has several major concerns about this part of the FLA:

Mediation is inappropriate in cases where family violence is present. Violence makes it difficult for women to participate in mediation as equals, and makes it too easy for an abusive spouse to control their ex-partner. Women should not be forced to participate in a process that falsely assumes they have equality in their relationships. And while mediation is not mandatory in cases involving family violence, there are many reasons women may not wish to talk about violence in their relationships, including fear of retaliation by their ex-spouses. In these cases, it is unfair to ask a woman to sit across from her abuser to discuss issues like parenting arrangements and division of property.

A lack of funding for professionals such as mediators and parenting coordinators means that women will be forced to pay for these services out-of-pocket.

A lack of resources to support women after leaving mediation means that even if safe and private spaces can be created in mediation, women may later face violence and see their agreements go unenforced.

Expanded definition of family violence: In addition to physical and sexual abuse, the term “family violence” in the new FLA includes emotional and psychological abuse, such as intimidation, harassment, threats, and stalking behaviours. This expanded definition is very important for women, as it takes many types of violence into account while also acknowledging power imbalances.

Needless litigation may also be considered a form of family violence under the new FLA. West Coast LEAF sees this as a positive development, as the courts can now manage this ongoing problem with conduct orders and other legal tools.

Protection orders enforced through the Criminal Code: These orders made by the court when there is a risk of family violence can now be enforced by police. While this is a very positive step for women and children, questions remain. For instance, will police receive appropriate training to enforce these orders? Will cultural considerations, including language barriers, be addressed?

In addition, the lack of legal aid remains a major issue. Because legal aid is unavailable in all family law cases except for very low-income parties who are facing family violence, many women cannot access the representation they need to achieve fair settlements for themselves and their children. Increased funding for legal aid is essential if the new FLA is to live up to its potential for women.

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West Coast LEAF is the only organization in BC that uses the law to further gender equality. We work to end gender-based discrimination using equality rights litigation, law reform, and public legal education.